Winning Answer Brief

Florida Statute § 56.29 allows a creditor with an unsatisfied execution of a judgment to discover assets and subject those assets to execution. The statute also allows the creditor to follow assets to third parties, where those assets may have been transferred to third parties through fraud, in an effort to conceal them, fraudulently dispose of them. While the Motion to Implead the individual by proceeding supplementary was filed, the individual was not given the opportunity to respond and defend. The individual was not served in a manner that protected or recognized his Constitutional Due Process rights.

There was also a fundamental defect in Plaintiff's attemtp to domesticate a money judgment from Ohio. Plaintiff was obligated to serve, upon Defendant’s attorney of record, on behalf of the Defendant, any final order or final judgment. Furthermore, Defendant requested proof of service, and did not receive it. Service of the final order of final judgment is required by statute. The burden of proving that service was rendered upon the Defendant lies with Plaintiff, as he is in a better position to demonstrate that proper service was made. Since no proof was ever provided, it stands to reason that no service was made upon Defendant. Since no timely service was made upon the Defendant, Defendant’s appellate rights were effected, and therefore, this court would lack subject matter jurisdiction.

TN THE DI^nrmrT fOURT OF APPEAI SECOND DISTRICT LAKELAND, FLORIDA BOATS EXPRESS, INC., d/b/a BOATS tsArKiida ^u^jt., ci ai., A X ADDellants. CASE NO.: 2D06-5713 LT CASE NO.: 00-2120-CI-15 [Pinellas County Circuit Court] MARK THACKERAY, Appellee. /ANSWER BRIEF Submitted on behalf of the Appellee, MARK THACKERY THOMPSON, GOODIS, THOMPSON GROSECLOSE & RICHARDSON, P.A * *^ g KEVIN M. DAVIS, ESQ. FBN# 0795941 ANDREA N. ZDANIEWSKI, ESQ. FBN# 0647330 Post Office Box 90 St. Petersburg, FL 33731 (727)823-0540 (727) S2J-U2.3U (Fax) Attoneys for Appellee, MARK THACKERAY Document hosted at http://www.jdsupra.com/post/documentViewer.aspx?fid=aef1dca3-80c4-4a24-8791-3fbbc37f8a2bTABLE OF CONTENTS Paae tadtc rw nnMTCMTC 1 TABLE OF CITATIONS ii STATEMENT OF THE CASE AND FACTS 1 SUMMARY OF THE ARGUMENT 13 ARGUMENT 15 THE FINAL JUDGMENT SHOULD BE AFFIRMED BECAUSE HUTCHINS RECEIVED DUE PROCESS AXTTi T-XXT? TDTAT i^riTTTDTT T\TT\ TJ A \7T? CTFD TTP^nr MATTER JURISDICTION A. Standard of Review 15 13. Tn TXu T mlu/^iTiiTJTNA TSO TK^ ecei *vea1 u/~\onsiituiionai uue process ... 15 C. The Trial Court Had Subject Matter Jurisdiction 27 CONCLUSION 33 V^J-JAV Jl JLJL A\^J 1JLJU \_yX LJJ—/XV Y i V-'i-/CERTIFICATE OF COMPLIANCE 35 _)_ Document hosted at http://www.jdsupra.com/post/documentViewer.aspx?fid=aef1dca3-80c4-4a24-8791-3fbbc37f8a2bTART IT. OF r ASF.S Cases: Page: Arcadia Citrus Growers Ass'n v. Hollingsworth, 185 So. 431 (Fla. 1939) 17-18 Baycare Health System, Inc. v. Agency for Health Care Administration,^ So.2d 563, 569 (Fla. 2d DCA 2006); citing Davis v. Prudential Sec. Inc., 59 F.3d 1186, 1190 (11th Cir. 1995) 16 _ *l* -v^ *—— * ^^ J-* *** ^^ X r"\ r\ Fisher v. State,840 So.2d 325(Fla. 5 l" D<JA ZUUi j zu /^¦/mo*/« /^T-^rrrr 7^ Sr, ?H 1 1 1 Q fFla S* DrA 1 Q9Q^ 20 Henderson v. Dept. of Health, 954 So2d. 77, 80 (Fla. 5 m DCA 2007) 15 Hilton v. State, 2007 WL 1932071 (Fla. 2007) 15 Jeffries v. Ga. Residential Fin. Auth., 678 F.2d 919, 922 (11 th Cir. 1982) 16 Machado v. Foreign Trade, Inc., 544 So.2d 1061 (Fla. 3d DCA 1989) 18-19 Martin Memorial Hosp. A Iss mn., Inc. v. Noble, 496 So.2d 222, 224 (Fla. 4tb DCA 1986) 16 Merritt v. Hefferman, 195 So. 145 (Fla. 1940) 17 M.L. Builders, Inc. v. Ward, 769 So.2d 1079 (Fla. 4th DCA 2000) 20-21 i \ut ir id imc lYiviur o uj j.' tut iuu, 1 /iL,. -iv*, ui Lfinit^y, 282 So.2d 617, 620 (Fla. 1973) 16 Ramagli Realty Co. v. Graver, 121 So.2d 648 (Fla. 1960) 20 7^ 7 ' Kooen dT*% tTL~l 7nmann, iTnc. v. X> 1 *-c ^~ /^ /-*« /¦* -f V~ -f -^ •T-T"l f of Jt sergh, i OJ h o.i a 0 15 (Jt<ia. i"DL'A ly'/S), overruled by Exceletech, Inc. v. Williams, 597 So.2d275 (Fla. 1992) 21, 23 -ii-Document hosted at http://www.jdsupra.com/post/documentViewer.aspx?fid=aef1dca3-80c4-4a24-8791-3fbbc37f8a2bRyan's Furniture Exchange, Inc. v. McNair, 162 So. 483 (Fla. 1935) 18-19 Sanchez v. Fernandez, 915 So.2d 192 (Fla. 4th DCA 2005) 15 Standard Property Investment Trust, Inc. v. Luskins, D53 50.^a ivyy, l iui (ria. ^t jl>w\ iyyo) +j Sverdahl v. Farmers and Merchants Savings Bank, 582 So.2d 738, 740 (Fla. 4th DCA 1991) .7 20 United Presidential Life Insurance Co. v. King, 361 So.2d 710 (Fla. 1978) 19 733 So.2d 1275,1276 (Fla. 3d DCA 2000) 21-22 Whipple v. JSZFinancial Co., Inc., 885 So.2d 933 (Fla. 4 th DCA 2004) 19-20 TvTv/1"ieczurvcK7 v. nTT oDz TnT j oTui.i •i!u Jers, i Tnc> h/IjfuA oOu. . 1zJu O 0/T0T//^Tn7a1 ._ j £*thu T\\^nt A\ 1i^ f\6 O^ )A5 \ overruled on other grounds by Exceletech, Inc. v. Williams, 579 So.2d 850 (Fla. 5th DCA 1991) 22-24 Wohlabaugh v. Salem Communications Corp, 2005 WL 629017 (2005) 29-30 Other Sources: Rule 4, Ohio Rules of Appellate Procedure 28-29. 31 Rule'SS. Ohio Rules nf Tivil Prnrprlnrp 99=00 U ""-£--/jlvu-i^ ^u? v^/inu xvui^a ui v^ivii nutcuuic Z^o 1 Ku1ie r-r\ r\i ¦ D y, um o Kuies or Civil Procedure 28-29 Rule 60, Ohio Rules of Civil Procedure 28-30 -m-Document hosted at http://www.jdsupra.com/post/documentViewer.aspx?fid=aef1dca3-80c4-4a24-8791-3fbbc37f8a2bSection 56.29, Florida Statutes 19,21, 23-25 -IVDocument hosted at http://www.jdsupra.com/post/documentViewer.aspx?fid=aef1dca3-80c4-4a24-8791-3fbbc37f8a2bSTATEMENT OF THE CASE AND FACTS [Note: Citations to the Record will read: [R:] This action arises out of the enforcement of a foreign judgment. [R: Vol. I p. 15] On March 23, 1998, the Appellee, Mark Thackeray [THACKERAY], iled suit in Ohio against the Appellant, Boats Express Inc. [BEI] alleging violations of Ohio law. [R. Vol. I, pp. 16-97]1 BEI subsequently sought to remove TX^ 1U1/TW 1AV UP1FVCTVD J AL O V C5tn^L xoV^7+1i1/^ XtX-i V-P71r1/-1w OiL-tC cIL+Vo' ^tUoU /I* tm LiU-rx+w ^+j-rw\ j.f &cxAx &wvrc-r* l}a xm v iv^/rxtx Ax n±£ As±r v±r±i l* /^ k0j ^ x1 ^ Q^ Q\-j t? arguing federal law preempted THACKERAY'S causes of action. [R. Vol. I, pp. 16-97] The United States District Court for the Southern District of Ohio, however, disagreed, entered an Order denying BEI's removal, and remanding the case back to state court. [R. Vol. I, pp. 16-97] On March 29, 1999, BEI asked the District Court to reconsider its Order, which the District Court declined to do in its iAxuviili /? s ^ \^x vxx^x . I x^. t uii it pp( x —'J-tUVII 11IU V wu wj utuV U1V JIUIV v/v W-X L action so that it could appeal the District Court's decision. [R. Vol. I, pp. 16-97] The District Court, however, denied BEFs Motion for Stay Pending Appeal. [R, Vol. I, pp. 16-97]2 In addition, on August 16, 1999, the United States Court of 1 Speciically, THACKERAY alleged BEI breached its contract with THACKERAY, committed unfair, dece±tive, and unconscionable acts and xractices in violation o_ O—io —aw7 caondm_m._i_tted conversion. [R. Vol. I, pp. 16-97] Accordins to the Order denvins BEI's Motion to Stav Pending Anneal, the. DkfnV.t Tonrt held, "Defendant's motion to stay pending appeal is not well-taken and is DENIED." [R. Vol. I, 1 Document hosted at http://www.jdsupra.com/post/documentViewer.aspx?fid=aef1dca3-80c4-4a24-8791-3fbbc37f8a2ba ^in *v^ +u<* c;v+1a r^i-r^nit icenA/l on rww arsntino THAPJCFR AY'q Motion to Disi-niss BEI's appeal for lack of jurisdiction. [R. Vol. I, pp. 16-97] Accordingly, the Common Pleas Court of Hamilton County, Ohio adjudicated the case. * The trial of this matter before the Common Pleas Court of Hamilton County, Ohio was scheduled for January 27, 2000, at which time BEI failed to appear. [R. Vol. II, pp. 272-287] Accordingly, the Common Fleas Court ot Hamilton County, OV>in e>r\it*re>r\ q t*ntprf*r\ o. liiHompnt in favor nf THATTfRR A V nnrl aoainst RFT in the amount of $45,975.42, inclusive of attorney's fees. [R: Vol. I, pp. 1-14]3 THACKERAY subsequently filed the judgment as a Foreign Judgment with the Pinellas County Circuit Court since BEI was a Florida Corporation with its business address located in Clearwater, Pinellas County, Florida, and a Lis Fendens. |K: Vol. i, pp. -I!—), y^ ^»^.Aj On Anril 71 9000 RFT answeed THArKKR AY's notir.p nf Filina nf Foreign Judgment by contesting the jurisdiction of the Ohio court. [R. Vol. I, pp pp. 16-97] 3The Common Pleas Court of Hamilton County, Ohio made the following factual findings: (1) BEI breached its contract with THACKERAY; (2) BEI violated the Ohio Consumer Sales Practice Act; (3) BEI acted raudulently; and (4) that BEI committed conversion. The Common Pleas Cout of Hamilton Countv. Ohio also held THACKERAY was entitled to *t s compensatory and punitive damages, and attoney's fees. [BEI]. [R: Vol. I, pp. 1-14] speciically, BEI's business address was 2451 McMullen Booth Road, Suite 200 Clearwater, Floida 33759. [R. Vol. I, pp. 16-97]7 Document hosted at http://www.jdsupra.com/post/documentViewer.aspx?fid=aef1dca3-80c4-4a24-8791-3fbbc37f8a2b16-97]5 Thereafter, THACKERAY responded to mrisdiction in his May 10, 2000 response. [R. Vol. I, pp. 99-167] There, THACKERAY argued the doctrines of res judicata and estoppel by judgment barred all of the BEI's contentions, that the state and federal courts of Ohio had already resolved said issues, and that the Judgement of the Common Pleas Court of Hamilton, County, Ohio was entitled to full faith and credit, and enforcement. [T> \rn1 T -^-^ OO 1£.*l~\ TV,^ D^olloc Cr\nr\Ur OirrMiit fN*_my v^i rUt-XQ v iT* wrj.P ^ w^ VH* T W T Ai Wthl THACKERAY, and entered an Order denying dismissal for lack of subject matter jurisdiction on July 17, 2000. [R. Vol. II, pp. 184-187]6 THACKERAY then prematurely moved to file a Writ of Garnishment, suggesting First Union National Bank [FIRST UNION] as Garnishee. [R. Vol. II, p. 188] At the time THACKERAY initially moved for the Writ of Ganishment, BEI had $43,609.35 in its account with FIRST UNION as Garnishee. [P.. Vol. II, pp. 194-197]7 ^Here, and despite the fact two federal courts ruled they did not have jurisdiction, and that the Ohio court had already entered a Final Judgment, BEI again argued the Pinellas County Circuit Court did not have jurisdiction because the Ohio court never ruled on its Motion to Dismiss based on federal preemption. [R. Vol. I, pp. 16-97] 6According to the Pinellas County Circuit Cout, the Common Pleas Court of Hamilton County, Ohio did have subject matter jurisdiction over the claims of both THACKERAY and BEL [R. Vol. I, pp. 184-187] According to FIRST UNION'S Answer of Ganishee and Demand for Garnishment Deposit, 4t[a]t the time of service of said Writ and at the time of this Answer, and in between said times, the Ganishee was indebted to Defendant(s) 'Boats Express, Inc.', in the amount of $43,609.35 by vitue of an account in the name of'Boats Express, Inc.'. . ." [R. Vol. II, pp. 194-1 Document hosted at http://www.jdsupra.com/post/documentViewer.aspx?fid=aef1dca3-80c4-4a24-8791-3fbbc37f8a2bJ_ ^ V V Wl L11V1VOJ. OlllVV X JL JLjL 1l \y.l ^„i-^JL V^ A. JL TvT^i^-H-Viial^co einn^ TWAPFPT? A Vc Mntinn tn Filp a Writ of Garni shin en t was 4J AT-J.VVav*-i »*w .*-jljl v w it .*. *.* v *, ^^ v**-*-^*u_i_*.*-.^»<~~-w t ¦ ™-premature, the Pinellas County Circuit Court dissolved the Writ of Garnishment on July 26, 2000. [R. Vol. II, p. 193] In addition, FIRST UNION'S records show Gregory Hutchens [HUTCHENS], sole shareholder and president of BEI during all material times [R. Vol. Ill, pp. 466-498], emptied the account in a single withdraw the very next day (July 2 /, ZU j-lU*-v Uj-\ vj-ma -KI •mg "JWt-s* Tmr-i-»-vi*rtua -l1 l^y insolvent. |K. Vnl TTT nn 171 ^Q-466-4QR1 On July 28, 2000, BEI then moved for a rehearing on the Pinellas County Circuit Court's July 17, 2000 Order denying BEI's Motion to Dismiss for Lack of Subject Matter Jurisdiction. [R. Vol. II, pp. 198-201] In its Motion for Rehearing, BEI again argued federal law preempted the Common Pleas Court of Hamilton County, Ohio. [R. Vol. II, pp. 198-201] THACKERAY responded to Bti's Motion for Rehearing on August 3, 2000. [R. Vol. II, pp. 202-203] There THACKERAY argued, inter alea, "[t]he issue of federal preemption was thoroughly litigated in the federal court, and it is clear from the record that the federal court soundly rejected that argument." [R. Vol. II, pp. 202-2003] On November 7, 2000, the Pinellas County Circuit Court, after previously granting BEI's Motion for Reheaing on August 14, 2000, again denied BEI's Motion to 197] Document hosted at http://www.jdsupra.com/post/documentViewer.aspx?fid=aef1dca3-80c4-4a24-8791-3fbbc37f8a2bt^;~™..\^ rr> \r^ tt ^^ ono oin-o<91 Ten days later (November 17, 2000), THACKERY timely moved for a Writ of Garnishment, again identifying FIRST UNION as the Garnishee. [R. Vol. II, p. * 259] On December 4, 2000, FIRST UNION filed its Answer of Garnishee and Demand for Garnishment Deposit. [R. Vol. II, pp. 268-271] According to FIRST UNION'S pleading, although BEI's account totaled $43,609.35 at the time of X X XJ. X \_SX^J—tX V JL O HiJl TTJLJ.V \_^ JL O Ar^TJT? V'c -irct Wi-it nfnamicVimpnt tVip srnrmnt 1-iaH HpprP3Cf»H tr> <H79 97 V>v ^—J dX lilUlllilVXltk HIV UJAAV v*-i-^V jl-AM*^ ^i-w wj_ vul/vv* tv *^ ^ * *w> jw f ^ > the time THACKERY filed his second Writ of Ganishment. [R. Vol. II, pp. 268-271] In addition, BEI filed with the Common Pleas Court of Hamilton County Ohio a Motion to Reconsider, Set Aside and/or Vacate the original judgement on January 12, 2001-again, on preemption grounds, as well as BEEs allegation it -*-¦» *^ T ^^-*. ^-»* ^" ** -»-* «^ W* **» ^p-^_-c_* j nev^r rp.reiverl ?i rn-nv nftVip Final TnHornpnt TR Vol TT ^_f Jt bA. Jv^^ JL 1.AXIAJ. f \-#» \J-WJLXJLVA-i. V V j JL %-t T ^-^ i * JV JL * LJ1 k/« J_^ -n~n 979-9R71 IVTnrprwpr /J.W J^ V-//_L T JL \_/JL W V^ T W X and in connection with this recent Ohio filing, BEI also iled with the Pinellas County Circuit Court a Motion to Stay Execution of the Judgment, and any discovery related thereto. [R. Vol. II, pp. 272-287] Nevertheless, on August 10, 2001, Ohio judge, Judge Schweikert of the Court of Common Pleas of Hamilton uounty, unio entered filial bntry Overruling O -b¦ j*ections to Magistrate's Decision and AdoDtins Magistrate's Decision and thus, denied RFT's Motion tn Vnrxtf* fh X-^ T l,Jk W W*-V %^ L.J..1.W Document hosted at http://www.jdsupra.com/post/documentViewer.aspx?fid=aef1dca3-80c4-4a24-8791-3fbbc37f8a2bUlt/VlUUL)i^ WllUi^U JL4\agjllXWlAL. |_A^-? VX. AX, ^ j-/-*• ^ * ^^wj In aid of execution of the judgment, and in order to determine what happed to the funds in BEI's FIRST UNION account, THACKERAY deposed HUTCHENS on February 14, 2001. [R. Vol. Ill, pp. 466-498] During the deposition, HUTCHENS testified that he made the July 27, 2000 withdraw in order to pay bills. [R. Vol. Ill, pp. 466-498J HUTCHENS further argued he lost GamUL-Xw \ oC-LnXrXl Val lCl X*XrfX* Xr> ^ \^rVv/rAv l\ -cX krJ^ Xla VtiX-nUrllrii dt rtV\ tIV.X^XcWf*L -H7Will cU llTiUTi ?IX X\-.f (" WT V lTi JTkJTLA nj Mn N&* c* k' W£ \l--^AV-Q'J Rjl-JlL WV/TnTW^/T^ W/pAr HUTCHENS later testified during the Proceedings Supplementary to withdrawing the funds in order to escape a future writ of garnishment. [R Vol. V, pp. 705-807]8 8Speciically, HUTCHENS testified as follows: Q: Why is it, sir, that all of a sudden on July 7th of 2000 that you start-July 27th of 2000 that you all of a sudden started paying your bills in cash? A: As I recall on 07/20, $34,917.35 was taken out of my account and on 07/25 another ganishment of $85692 was taken out of my account, Q: That wasn't my question, sir. A: I'm gonna finish. Can I finish? ^: Yes, sir, please do. A: Because of the acts of Attorney Spanolios [THACKERAY'S previous counsel]. I was advised by my attorney to pay my bills with money orders and I was fearful that they were gonna take the money out of my account again and then I would be in court for nonpayment of my bills. THE WITNESS: Judge, several of these contracts that we have with our carriers can run anvwhere between $7,000 to $10,000 to $15,000 when thev do-when the.v transport a boat for us. The fear that I had is that they were gonna come back and Document hosted at http://www.jdsupra.com/post/documentViewer.aspx?fid=aef1dca3-80c4-4a24-8791-3fbbc37f8a2brv« AnmictA 1C\(\A TTJAPT^IhP AV filpH Viiq lVTntinn for Prnrpprlinaq Supplementary. [R. Vol. II, p. 302] After conducting a hearing on the matter on January 25, 2005, the Pinellas County Circuit Court issued an Order stating, "[BEI] shall have forty-five (45) days to evidence the proceedings in the Ohio court system have not been resolved ... If [BEI] cannot evidence the proceedings -i -i -¦ m the Ohio court system have not been resolved, a special magistrate wi ll be srvnrm-itpH to hpar thp rvmrpprlinoc Qiinnlpmpntarv " PR Vnl IT n 30S1 Accordingly, and after the expiration of forty-five (45) days without BEI evidencing the proceedings in the Ohio court system to be active pursuant to the above Order, THACKERAY moved for a special magistrate on March 25, 2005. garnish my account again and that I would be in trouble with my carriers for not paying them off So I was advised by my attorney at the time to get money orders, certified checks, cashiers checks, whatever it took to pay off my carriers to keep my credit line in shape, Q: So it's your testimony, sir, that the reason you withdrew the $43,609.35 on 07/27 of 2000 was to avoid the second writ of garnishment A: No, the reason I did it was to pay off my carriers, pay off my debts. That's why I did it. Q: Prior to the second writ of ganishment being issued? A: /had fear, yes. I had fear that they were gonna take the money out again, sure. That's pretty obvious. But if you look at the statements here you'll see that our receivables ran anywhere between $20,000 to $30,000 a month, maybe even more. [R Vol. V, pp. 705-8071 (Emphasis added). 7 Document hosted at http://www.jdsupra.com/post/documentViewer.aspx?fid=aef1dca3-80c4-4a24-8791-3fbbc37f8a2b[iv. vui. 11, pp. JUU-JU/J Then on August 8, 2005, BEI once again moved for dismissal on the grounds BEI's Ohio counsel allegedly never received service of the Final *. Judgment against BEI the Common Pleas Court of Hamilton County, Ohio entered on August 10, 2001. [R. Vol. II, pp. 308-313] According to BEI's argument, THACKERAY had a duty pursuant to Florida Rules of Civil Procedure to serve T3TTT vwi+Vkt1-»o Anmiof 1/1 OHA1 Hrrlor iccnP^ Kv on HViiA prviirt TT? Vnl TT rw 3HQ 313] Nevertheless, the Pinellas County Circuit Court entered an Order appointing a Special Magistrate on August 8, 2005. [R. Vol. II, p. 314] THACKERAY, however, then moved to have the Pinellas County Circuit Court, as opposed to a magistrate, preside over the Proceeding Supplementary on September 14, 2005, and which he later amended in order to implead HUTCHENS, the sole LcJVXi.cL*Ur^.1l"-iVrii1lVrylFiV>lVr l cU\.rJ\A.X «r_\rl ^Ucii rWlAUil-UitV ril*l -Vf XR JT^hJUTl r\lJn-rUini-r1r AqA1i1ti Wtimll pUcll iVr/U= »A1 V*^1\V7 0r -Un1t X\\Ie H*V-r1p *^i r\,\\ JT .T j? AV.\ /V/~Uil1. I IT -TL/nL/^ 319-339] In this motion, THACKERAY further argued, based on HUTCHENS' deposition testimony, HUTCHENS made the July 27, 2000 withdraw of BEI's funds from its FIRST UNION account with the intent to hinder, delay or defraud THACKERAY'S action to recover the judgement. [R. Vol. II, pp. 321-339] Un October 20, 2005, THACKERAY also filed his Memorandum of Law in OrrnosifinTi to RFJ's more. vf>r.p.r\t TVfntirvn to DiQvniQQ fnr T ^rV nf Qn"KiV/-t TVAot+pr R Document hosted at http://www.jdsupra.com/post/documentViewer.aspx?fid=aef1dca3-80c4-4a24-8791-3fbbc37f8a2bTuriQdir.tirm TR Vnl TTT nn 1S1 -^Rl Tn this motion THACKERAY attacked BEI's contention THACKERAY had a duty to serve the August 10, 2005 Order on BEI, which was issued by an Ohio court. [R. Vol. II, pp. 351-358] Moreover, * THACKERAY cited Ohio law as opposed to Florida law. [R. Vol. II, pp. 351-358] In support, THACKERAY also filed the Affidavit of THACKERAY'S Ohio counse-lI, -M» m-i*c1iiae1i tJt^fao-iIucci• r|-wK**. . ¦v» to -l¦. tnt , pp. 3i*\ 0•" rU> -^^\ So~ i1 ~j\ A1 ccoramg to Attoney Paolucci, he received the August 10, 2001 Order. [R. Vol. II, pp. 360-361] More importantly, however, Attorney Paolucci stated BEI's Ohio counsel, John J. Williams, indicated he, too, received the August 10, 2001 Order, and that Attoney Williams considered the Ohio portion of the litigation to be over. [R. Vol. II, pp. 360-361 ;Vol. Ill, pp. 382-383] As such, the Pinellas County Circuit Court entered l -f * t-\ v-*y i -* an ura er denying ±siii*s M*otion xo tut^ i¦smi*ss ino Tr i^ac1K oi/*/"s-,u1Dj*ect M** jratter jurisdiction on December 14. 2005. \R. Vol. TTT. n. 3841 In addition, the Pinellas Countv 7 X Circuit Court also granted THACKERAY'S Motion requesting the court preside over the Proceedings Supplementary and to Implead HUTCHENS on January 17, 2006. [R. Vol. Ill, pp. 385-386] The Pinellas County Circuit Court issued this '". ¦ -— " Order to both THACKERAY'S counsel, and(lTUTCHENS' coimseOohn £ ' *¦' ' 1 i-¦ v T~> JDd.il~g„U„ bri.~L>IV U.-lV T OTTI. ill, „p. J-I OO CJO**OnOsiJ On May 30, 2006, after entering an Order impleadina HUTCHENS. theDocument hosted at http://www.jdsupra.com/post/documentViewer.aspx?fid=aef1dca3-80c4-4a24-8791-3fbbc37f8a2bPinellas County Circuit Court commenced the Proceedings Supplementary Examination of HUTCHENS, who appeared with representation, and after receiving notice through Attorney Bangos,9 and who defended his actions. [R Vol. Ill, p. 499; Vol. V, pp. 705-807] Moreover, Attorney Bangos gave an opening statement and cross examined HUTCHENS in further defense of HUTCHENS3 actions. IK Vol. V,pp. 7U> *-J-8\ /U"v /J The Pinellas County Circuit Court subsequently issued an Order following the May 30, 2006 proceeding, which held the matter would reconvene on August 31, 2006, and that HUTCHENS would produce various material on that date. [R. Vol. Ill, p. 499]10 HUTCHENS' failure to produce this material also forced the Pinellas County Circuit Court to enter an Order to Show Cause on the same date (January 8, 2005). [K. Vol. Ill, pp. 5 p~u r\u r\o r~u ri\ ji *i 9The forms of notice for the Proceedings Supplementary HUTCHENS received via Attorney Bangos include: THACKERAY'S September 13, 2005 Motion to Amend Proceedings Supplementary for Execution and to Implead HUTCHENS, the September Notice of Hearing on THACKERAY'S September 13, 2005 Motion, the September 28, 2005 Notice of Hearing amending the hearing date on THACKERAY'S September 13, 2005 Motion, the January 12, 2006 Noice of hearing or the March 28, 2006 Case Management Conference, and the January 17, 2006 Orders granting THACKERAY'S September 13, 2005 Motion, and granting THACKERAY'S Motion that the trial court both implead HUTCHENS and conduct the Proceedings Supplementary. [R. Vol. II, pp. 321-339, Vol. Ill, pp. 385-386]. 10The Pinellas County Circuit Court specifically sought HUTCHENS' individual tax returns for 2000 through 2005, all documents related to HUTCHENS' Charles Schwab Stock Accounts, all account records/statements for all corporations for which HUTCHENS is an oficer, and all corporate tax retuns for BEI, Specialty Shipping, Inc., and Bass and Flats, Inc. for 2000-2006. [R. Vol. IK, p. 499] 10 Document hosted at http://www.jdsupra.com/post/documentViewer.aspx?fid=aef1dca3-80c4-4a24-8791-3fbbc37f8a2bHUTCHENS failed to comply with the January 8, 2005 Orders. [R. Vol. Ill pp. 502-505] As such, THACKERAY moved for an Order to Show Cause and Continue the Proceeding Supplementary. [R. Vol. Ill, pp. 502-505] On September 14, 2006, the Pinellas County Circuit Court granted THACKERAY'S Motion to Show Cause and to Continue the Proceeding Supplementary, and ordered HUTCHENS to produce the material in question on September 18, 2006. [K. Vol. ttt r»r» sn?-sn^~iH JLX-I-. UUi w* \S J** ^/\S ^y J On November 8, 2006, the Pinellas County Circuit Court convened the Proceedings Supplementary. [R. Vol. V, pp. 808-809] The Court subsequently entered its Final Order on Proceedings Supplementary/Entry of Final Judgment Against BEI and HUTCHENS on November 21, 2006. [R. Vol. V, pp. 808-809] According to the Order, the Pinellas County Circuit Court tound HUl'CHbNs' July 27, 2000 transfer of the funds from the FIRST UNION account was done so "fraudulently and for the express purpose of avoiding payment of the January 27, 2000 Final Judgment rendered against" BEI, and that HUTCHENS' fraudulent transfer of monies to and from corporate accounts which he controlled . . . renders HUTCHENS personally liable for this debt." [R. Vol. V, pp. 808-809] The 11 The Pinellas County Circuit Cout also held HUTCHENS in contempt, sentenced him to ive-months incarceration, but deferred the incarceration until September 18, 2006 provided HUTCHENS produced all said material. [R. Vol. HI, pp. 502-505] 11 Document hosted at http://www.jdsupra.com/post/documentViewer.aspx?fid=aef1dca3-80c4-4a24-8791-3fbbc37f8a2brniciias futility v^hl;lui ^uun suuscqucuuy giiicigu an rvmciiucu i inai wiuu un Proceedings Supplementary/Entry of Final Judgment Against BEI and HUTCHENS, which simply added a paragraph requiring HUTCHENS to complete under oath Florida Rule of Civil Procedure Form 1.977 (Fact Information Sheet). The Appellants appealed this Order, as well as the previous Orders denying BETs Motions to Dismiss for Lack of Subject Matter Jurisdiction. 19 Document hosted at http://www.jdsupra.com/post/documentViewer.aspx?fid=aef1dca3-80c4-4a24-8791-3fbbc37f8a2bCTTIVTA/T ADV r*TT Till? A "B ril TlVn? "NTT O U1T11T1^\1\ J. V^X' JL AJLJU; i-XJLVVJi ^ J.TJLJUJ.L "* A The time has come to end this litigation as to THACKERAY via an affirmance of the Pinellas County Circuit Court's July 17, 2000, August 14, 2000 and December 14, 2005 Orders issued by the Pinellas County Circuit Court denying BEI's Motions to Dismiss for Lack of Subject Matter Jurisdiction, and the December 18, 2006 Amended Final Judgment. Instead of raising an appealable •inniiA m-iv\-ryr\v+£±A V\\r 1 r»i"w r\-r oi tt A on f* ja +1-n=* A TVn*»11 Onto V»Ql/<=* TnctPOrl r*Tir\OP'"\7 tr\ r^1\/upon speculation in direct contradiction to the evidence before this Honorable Court. Specifically, HUTCHENS did receive due process; the record evidence shows HUTCHENS did receive notice of the Proceedings Supplementary, appeared at the Proceedings Supplementary, and defended his actions before a neutral judge. Moreover, HUTCHENS' contention he be formally served with LJX \JWVOO X\JX UJLjLW JL X WWVU.llltiJ l*J W-M L/lVIllVXltV+l J ±LJ W t-*k-i %• A w kj VJ ¦ aaj. s^r WAVl T T VA VA-kJ^ *. a j. w Appellants' appeal in this regard, which is basically based on an unsuccessful "gotcha!" tactic, is yet another example of the Appellants5 attempt to purposefully evaded their legal obligation to make THACKERAY whole. Further, the Appellants argue THACKERAY failed to meet THACKERAY's burden to prove, pursuant to Florida law, the Common Pleas Court of Hamilton County, Ohio served BEI with the Au211st 10, 2001 Final Order. As such n Document hosted at http://www.jdsupra.com/post/documentViewer.aspx?fid=aef1dca3-80c4-4a24-8791-3fbbc37f8a2bcording to the Appellants, they were unable to appeal the matter, which in turn means the Pinellas County Circuit Court lacked subject matter jurisdiction. The Appellants' argument fails, however, for two main reasons. First, Ohio law, not Florida law, applies to this issue. According to Ohio law, THACKERAY had no such burden to prove the Common Pleas Court of Hamilton County, Ohio served ^ a ¦% ¦* *"*r* the August 10, 2001 Order on BEI. Second, t he Appel lants prot tered no evidence showing they did not receive the August 10, 2001 Order. In fact, the only evidence regarding the issue is the affidavit of Attoney Paolucci, where he testifies the Appellants' Ohio counsel, Attoney Williams, did, in fact, receive the August 10, 2001 Order and considered the matter over. As such, the Pinellas County Circuit Court did have subject matter jurisdiction. 14 Document hosted at http://www.jdsupra.com/post/documentViewer.aspx?fid=aef1dca3-80c4-4a24-8791-3fbbc37f8a2bAOI^TTTV/n^TVT \*J XYJLJL-JX 1 JL THE FINAL JUDGMENT SHOULD BE AFFIRMED BECAUSE HUTCHENS RECEIVED DUE PROCESS AND THE TRIAL COURT DID HAVE SUBJECT MATTER JURISDICTION A. Standard of Review "The basic due process guarantee of the Florida Constitution provides that '[n]o person shall be deprived of life, liberty or property without due process of I1oCitIjVV5. Aiiirlt. jTu &y Q ^T/*7 X1 Aol tf.^ vrv^VnoilJt lT. XV1i*J=.V» x"P iiiu-fxV ±h uAiimviipuniiirvlmm pivn th atrw\ fwlipin-ivTuT urnlufplvrjl Q+at^e Constitution guarantees the same." Henderson v. Dept of Health, 954 So.2d 77 80 (Fla. 5th DCA 2007). As such, "mixed questions of law and fact that ultimately determine constitutional rights should be reviewed by appellate courts using a two-step approach, deferring to the trial court on questions of historical fact but conducting de novo review of the constitutional issue.55 Hilton v. State, 2007 WL 10^9071 fRIa 1C\C\1\ "Riirfhpr "TvuThpthpr a r.rviirt has QiiWip.p.t matfpr iq a nnpstinn of law reviewed de novo." Sanchez v. Fernandez, 915 So.2d 192 (Fla. 4 th DCA 2005). B. HUTCHENS Received Constitutional Due Process In the "Question Presented" portion of Appellants' Brief, Appellants state tt *-» ¦—* ^ ^ an issue this Honorable Court is to address is "whether Flaintijj followed constitutional due Process requirements in obtaining a iu dement against Gre^orv 15 Document hosted at http://www.jdsupra.com/post/documentViewer.aspx?fid=aef1dca3-80c4-4a24-8791-3fbbc37f8a2bD. Hutchens." "Constitutional due process protections do not extend to private conduct abridging individual rights; only state action is subject to scrutiny under a due process analysis." Baycare Health System, Inc. v. Agency for Health Care Administration, 940 So.2d 563, 569 (Fla. 2d DCA 2006); citing Davis v. Prudential Sec. Inc., 59 F.3d 1186, 1190 (11 U1 Cir. 1995); see also Northside Motors of Florida, Inc. v. Brinkley, 282 so.z /> a1 o-^ 1i «/, o*-z*%u f\ (/T*-1i1a. i< yA* -1tA5\ S) (w1nere tne Florida Supreme Court held due process is "directed solely to state action and individual invasion of individual rights is not the subject matter thereof) see also Martin Memorial Hosp. Ass n., Inc. v. Noble, 496 So.2d 222, 224 (Fla. 4 m DCA 1986) (where the Fourth District Court of Appeal held state involvement must be demonstrated before a court can determine a party violated one's rights to due s*f* process); see also Jef ries v. Ga. Residential Fin. Auth., 678 F.2d 919, 922 (IIth Cir. 1982) (explaining that "the fourteenth amendment proscription against deprivation of property without due process of law reaches only govenment action and does not inhibit the conduct of purely private persons in their ordinary activities"). Accordingly, THACKERAY, a private person, could not have violated HUTCHINS' due process rights as the Appellants contend in their Brief. Nevertheless, in their Brief, the ADuellants areue service of urocess was not 16 Document hosted at http://www.jdsupra.com/post/documentViewer.aspx?fid=aef1dca3-80c4-4a24-8791-3fbbc37f8a2bMTp^tiiQfprl rm UT TTPWTTKFS reaarA\-no THATT^FR AV'q Mntirm tn TrrmlpiaH -jf HUTCHENS. As such, according to the Appellants, HUTCHENS lacked notice, and was unable to defend himself at a full and fair hearing, which in tun constituted a violation of HUTCHENS5 due process. Of course, the facts of this case show otherwise since several filings, motions, and notices concening the Proceedings Supplementary were directed to HUI uHKNS via his counsel, .*. -*. V V *-J» A JL A Attnmp.v T^pmcrns ariH <iinr.p. HI TTPHF.NS c\\c\ annp.ar at the Prnr.pprKnaQ Supplemental to defend his actions. Florida law does not support HUTCHENS5 contention a third party must receive service of process in order for a court to implead the third party. Indeed the case law HUTCHENS5 cited in his brief do not support HUTCHENS5 position ¦l -1 ^ * . "* iT* he must be served m order to be imp led , despite t he l act HUTCHbJNS had sufficient notice of the proceedings sunnlementary. For instance, Merritt v, Hefferman, 195 So. 145 (Fla. 1940) is factually distinguishable rom this present matter. Specifically, the case did not concen impleading a party, but instead whether proper service was made on the appellants5 place of abode. Further, Arcadia Citrus Growers Ass 'n v. Hollingsworth, 185 So. 431 (Fla. 1939) dealt with "whether a final judgment, entered by a clerk upon a default, is null and void and subiect to collateral attack when the defendant was nroDerlv served . . ." x x j 17 Document hosted at http://www.jdsupra.com/post/documentViewer.aspx?fid=aef1dca3-80c4-4a24-8791-3fbbc37f8a2bTronicallv. however, is the fact the Florida Supreme Court also held in that case. ¦/? '"[a] defendant may waive defects in attempted services, whether the process is actual or constructive. Such waiver is always implied from voluntary appearance „, \ljr;Uw 1-^hll I-1 I I .. * — * --1a* tr 6 without questioningJ^^diciJcmA..f.', (Emphasis added). Accordingly, if this Honorable Court is to procure anything from Arcadia Citrus Growers Ass 'n., it should be that HUTCHENS5 waived defects of service, if any, by appearing at the A *—' JL JL Droceedines supplementary. Further, neither Rvan 's Furniture Exchange. Inc. v. .• ' -" L-J * McNair, 162 So. 483 (Fla. 1935), nor Machado v. Foreign Trade, Inc., 544 So.2d 1061 (Fla. 3d DCA 1989), hold "[sjervice should be perfected by serving a summons and the Motion to Implead, along with the Order Granting the motion on the impleaded party by personal or substitute service5' as the Appellants suggest in their Brief. Ryan }s Funiture Exchange actually provides in part: In Droceedines supplemental to execution under the Florida statutes, due J-JL process of law must be observed whereever rights of third parties are required to be adjudicated, and, in order to adjudicate the rights of such third parties, they must be made actual parties to the proceedings, either by their own voluntary intervention or by the service of an appropriate _i ,-¦ J-;^. * -M -J.—J.W .t»-x -J. Wi V 111U1 V*l r-V \-/JLO. tXJ.VJ.Xl L\_/nilp tiiqi imrvn tRprn fr\ <zr\r\p>Qr ar\r\ clnnw rmtcp wliv tViPir ^ccprfprl plcnmc *-* U-/L/VVil M>XJVX l*J A. J*\*f T t wIp^u^U V T v JL a > UjVVJ.1 ULJUVjV VVU VXL4XXXXU *.* .-.jaff.-fO* _ —--,.,r.^Wc^p^„Jp^-V«Br. to dispu ted assets m their hands, possession, or control should not --inquired into and held to be voidable as to the plaintiff in execution who -™-"**-rT-i¥^»-B»^Lj iJB"jv*-* ¦>¦ ¦ ¦ ¦¦"^ ¦¦ ---"--^jb ^ "V»c—"r^. ^ .¦' -*x^i^»_n_ h " is seeking to reach such disputed assets in order to satisfy Ms judgment ~_.-~_.~~—.*_..,.-.-,—"" -¦ against his judgment "deb tor wh ose assets he claims they in reality are. .v -v k h r-Tf. at 487-488. (Emphasis added). Moreover, Machado cites i?ya/2 's Furniture 18 Document hosted at http://www.jdsupra.com/post/documentViewer.aspx?fid=aef1dca3-80c4-4a24-8791-3fbbc37f8a2bExchange bv holding.07 no rights of such third parties should be adjudged to be affected, impaired, or finally cut off by any order of the court made in such proceedings supplementary to execution, unless such third parties have UVWl X11DL 1U11 V 1111U1VUUUU C4.J.XVL UlVUCllL 111LV U1V WIXU**' tXkj CWLW-LXX UU1 UVJ LV +* the pocei^ fairly present their claims asvarties entitled to full and fair hearing after the _ji—--» ~--makin g up of definiteJ^^ and not as mere spectators or bystanders in the cause. j. iL-_-.--^ ¦-——™ ¦*-¦ "-— Machado, 544 So.2d at 1062. Accordingly, if the notice provided to HUTCHENS via his legal representation, Attoney Bangos, was insufficient, then at the very least, his appearance constituted voluntaiy intervention pursuant to Ryan js Tf-Mwiititv/j T?vr>]irtvicr& AnH oc +Vit* re*nr\rr\ p]pQrl\; cVirwi/c T-IT TTf^T^TTHXTQ AiA rf*rf*i\7£* a ± UltllVHAI**-J_V^H_//J-L-t/I. C t-. ± VilU C4-LJ U1J.V A X-'t-'VJ. VI WXVUi ±J unv rr u, JL jv \_> x ^^.A JLJL_/J\. 1 k-» UiU X V-/VV/J-Y V full and fair hearing upon his appearance. Further, the case of United Presidential Life Insurance Co. v. King, 361 So.2d 710 (Fla. 1978) does not even concen section 56.29. Instead, the case concened the constitutionality of sections 77.01 and 77.03, Florida Statutes, which deal with the issuance of writs of ganishment. In addition, Whippie v. JSZ Fivmnrinl Cn hnr RR^ Sn ?ri Cm (V\x 4th DPA 9004^ r.rmrpmpH <A irml judgment enforcing a Texas judgment the Florida Fourth District Court of Appeal held to be void because the appellee failed to properly serve the appellant in Texas. Here, service of process upon HUTCHENS in Ohio is not an issue. On the 19 Document hosted at http://www.jdsupra.com/post/documentViewer.aspx?fid=aef1dca3-80c4-4a24-8791-3fbbc37f8a2bsame note, Greisel v. Gregg, 733 So.2d 1119 (Fla. 5th DCA 1999) is as equally unrelated as Whipple to the present matter. Greisel concened the appellant not receiving service of process because the appellee sent it to the wrong address. As a result of the improper service, the court entered a default judgment. Here, however, BEI never contested Ohio service of process, and there was never a detault judgment, in tact, Jam litigated 1 t^ne matter up-ana1-untu¦ 1 i¦ t neg1lected1 to appear at triaL Additionally, Fisher v. State, 840 So.2d 325 (Fla. 5 m DCA 2003) dealt with whether a parent received proper notice of her financial responsibility for a restitution order the juvenile court issued against the parent's minor daughter for an arson conviction. The present matter, however, does not concern proper notice. The records here clearly shoy'ITU l CHEN ^received notice of the proceedings BO ,JJ:^> -¦* r-i' hi -r —imrlementarj since_ he ai"x"eare-d-. Moreoverj Rama^liRealt^ Co. v. Craver. Ill r So.2d 648 (Fla. 1960) concerned whether a district court of appeal can entertain an appeal more than sixty days after final judgment, which is not even remotely related to the present matter The final case HUTCHENS cites in support of his position section 56.79 requires a third party be served with a summons is M.L. Builders, Inc. v. Ward, 769 So.2d 1079 (Fla. 4 th DCA 2000). M.L. Builders dealt with an appellant not 20 Document hosted at http://www.jdsupra.com/post/documentViewer.aspx?fid=aef1dca3-80c4-4a24-8791-3fbbc37f8a2bbeine served in a suit for fraudulent lien and slander of title, and as a consequence, the Fourth District court of Appeal vacated the final judgment. M.L. Builders, however, neither concened section 56.29, nor the procedures related to proceedings supplementaries. The case probably most supportive of HUTCHENS5 position is Robert B jznmann, inc. v. nergn, joj ou.zu 010 (ria. i i^wa i^/oj, wiiiuii uic nuriua Supreme Court has since overruled in Exceletech, Inc. v. Williams, 597 So.2d 275 (Fla. 1992), and which the Florida Fourth District Court of Appeal disproved in Sverdahl v. Farmers and Merchants Savings Bank, 582 So.2d 738, 740 (Fla. 4th DCA 1991). In Sverdahl, the Fourth District held: The Robert B. Ehlmann court also suggested that the rules of civil procedure were not applicable to the statutory proceedings and, even if ^... , ^. Ws Lll^y WC1C, LllCplUUUbCU L111JLU U'cU LY UCXtllUcUlLS llcLU LU UC SCI VCU/W1L11 L11C motior^oiinplead^e£o7:(gi/ie^cQuidjmrely beimpleaded. Again, when r^,r 'r% one considers the function of creditors5 bills, the first district's requrement for section 56.29 impleader of third parties appear quit unnecessary and unrequired by anything in the statutes. (Emphasis provided by the Court). Additionally, the case of Varveris v. Alberto M. Carbonell, P.A., 773 So.2d 1275, 1276 (Fla. 3d DCA 2000) provides a judgment debtor can serve a third party iiii^ivuuvi \a^x^n\_i.ciiiL pviouiiaii)' L//L/y w O <4lA>tMl«tC-U. /tlClflUU dUJJ IL-OZIIL LU UUI'U&f jurisdiction upon the court. " (Emphasis added). In Varveris, the judgment debtor, 21 Document hosted at http://www.jdsupra.com/post/documentViewer.aspx?fid=aef1dca3-80c4-4a24-8791-3fbbc37f8a2bCarbonell, sought to recover a iud^ment from Alexander Varveris. and sought to implead Alexander Varveris5 wife, Marie Varveris. Carbonell, however, was unable to serve Marie Varveris. Nevertheless, the trial court conducted an evidentiary hearing, impleaded Marie Varveris, and found her husband's transfers to her were fraudulent. Accordingly, the trial court ordered Marie Varveris satisfy me outi staand1 i•ng juai gmenij uy~\n appea1l, in. o_we_ve_r_, ij ni. e_ ninmi •ra_i ui »sin•ct reversed, reasoning "it is undisputed that Maria was not served personallv or bv a --*—._—,lr—„*—--^.^... ^--*---¦¦<¦ .^.—"^ substituted method suicient to confer jurisdiction upon the court" Id. (Emphasis IT -¦ .^^I~k -J!. *«¦^-r...'.ri-tmr.*-^^J*•m>•^'-^*^^¦^^-i• '"*"" "• •'•^ ¦>--*****~ ' added).Like Marie Varveris, HUTCHENS contends on appeal THACKERAY never served him personally. Unlike Marie Varveris, however, HUTCHENS did receive "a substituted method sufficient to confer jurisdiction upon the court.55 In other words, HUTCHENS received ample notice of the Proceedings Supplementary via filings, motions, notices and orders forwarded to HUTCHINS5 counsel, Attoney Bangos. Further, the Floida Fifth District Court of Appeal's ruling in Wieczoreck v H&H Builders, Inc., 450 So.2d 867 (Fla. 5 tn DCA 1984), overruled on other gruunus uy r^xcviciccn, inc. v. nuuurns, j /y ou.za oju (rid. j ui^j\ iyyi), a factually analogous case, also addresses the present issue. According to 22 Document hosted at http://www.jdsupra.com/post/documentViewer.aspx?fid=aef1dca3-80c4-4a24-8791-3fbbc37f8a2bWieczoreck, "[although section 56.29. Florida Statutes (1981), does not prescribe the procedure for impleading third party defendants, the case law of this State establishes the proper procedure. Robert B. Ehmann, Inc. v. Bargh, 363 So.2d 613 at 615 (Fla. 1st DCA 1978)."12 Id. at 871. In addition, courts are to give section 56.29 "liberal construction so as to afford the judgment creditor the most complete reiie ip ossioi e. la7. cui-ng Jtucnar a v. mci\air, i uh-ou. cou ai ohu \ria. iyjj) Further. Wieczoreck Court also held that "Fflhe fundamentals of procedural due process are (1) a hearing (2) before an impartial decision-maker, after (3) fair notice of the charges and allegations, (4) with an opportunity to present one's own --.™„ . >,_,-_ ,--*.. v. — "' .. „*„-*_,.-¦" iHf^k' -n.-—*—a f "--¦—--""—"¦ —•-—"¦ —*¦¦*—•* -» case.55 Id. citing Neff v. Adler, 416 So.2d 1240 at 1242-43 (Fla. 4 m DCA 1982); and Mission Bay Compland, Inc. v. Summer Financial Corp., 71 F.R.D. 432 at hod (ivi.u. na. iy/o). In Wieczoreck, the appellee obtained a final judgment against Nelson Davis. The appellee subsequently moved to implead a third party, and filed an affidavit stating the third party received a conveyance from Nelson Davis on the date 12The Fifth Distict continued by stating in relevant part, "jujnder the decisional law interpreting section 56.29, there are two jurisdictional prerequisites for supplementary postjudgment proceedings: (1) a retun and unsatisfied writ of execution; and (2) an affidavit averring that the writ is valid and unsatisfied, along with a list of third persons to be impleaded. Tomayko v. Thomas, 143 So.2d 227 at 229-30 (Fla. 3d DCA 1962)." Note, however, these elements are not longer necessary. See Standard Property Investment Trust, Inc. v. Luskins, 585 So.2d 1099, 1101 (Fla. 4th DCA "l 998). Nevertheless, THACKERAY met these requirements. 23 Document hosted at http://www.jdsupra.com/post/documentViewer.aspx?fid=aef1dca3-80c4-4a24-8791-3fbbc37f8a2bappellee filed the action in attempt to hinder or defraud the appellant's creditors. The trial court ultimately entered a final judgment against the appellant pursuant to section 56.29. The final judgment also impleaded the appellant as a third party, and found null and void the conveyance to the appellant "since it constituted a fraudulent conveyance for the purpose of delaying, hindering or derauding the creditors55 of the appellee. Appellant subsequently appealed, maintaining "that he was denied due process of law because he was not fully impleaded as a third party until the final judgment which simultaneously divested him of any and all interest in the real property deeded to him by Nelson L. Davis . .." Id. at 871. According to the Fifth District, "the appellant received (1) a hearing (2) before an impartial decisionmaker, after (3) fair notice of the charges and allegations, (4) with an opportunity to present his own case.55 Id. at 872. Further, the Fifth District went on to hold. "Although it may have been better procedure for the trial court to have entered an order first impleading the appellant and then an order setting aside the conveyance, we cannot say that the procedure utilized in the case at bar did not comport with procedural due process of law.55 Id. (Emphasis added). The procedural history of the present matter is analogous to Wieczoreck fur several reasons. For instance, THACKERAY filed a complaint against BEI to 24 Document hosted at http://www.jdsupra.com/post/documentViewer.aspx?fid=aef1dca3-80c4-4a24-8791-3fbbc37f8a2brpmver monev inst like the annellee in Wieczoreck filed a comnlaint against Nelson Davis to recover money. Further, THACKERAY, again like the appellee in Wieczoreck, filed an affidavit to support his contention the trial court should implead a third party. In Wieczoreck, the affidavit cited the appellant as the prospective third party the court should implead. Here, the September 5, 2005 Amended Aiiiaavn 01 1 nAUisj^KA i cixea nu l^Jbij&iNa as me prospecuve imru nartv the court should imnlead. In addition, THACKERAY5s affidavit requested JO® ^-j. if -jv-v HUTCHENS show cause why he should not be impleaded^Just like the trial court <§ppo< "V'U^^ ~ ¦» ---X---_-¦. i ' in Wieczoreck issued such a notice to Davis. .-. -* The results following the Proceedings Supplementary in the present matter, too, is analogous to the results following the proceedings supplementary in wieczorec K. ^pec mca ny, me rme iia s ^oun iy ^lrcu u ^-our i lou na nu i^nmNd transfer of funds from BEI's FIRST UNION account was done so "fraudulently and for the express purpose of avoiding payment of the January 27, 2000 Final Judgment rendered against55 BEL Likewise, the trial court in Wieczoreck held the transfer of assets in that case constituted a raudulent conveyance for the purpose of delaying, hindering or defrauding the appellee. Also, HUTCHENS, like the appellant in Wieczoreck, filed an appeai xrom a xinal judgment enteied m a supplementary proceeding pursuant to section 56.29 on due process grounds 25 Document hosted at http://www.jdsupra.com/post/documentViewer.aspx?fid=aef1dca3-80c4-4a24-8791-3fbbc37f8a2bJ JL ^*,JL JL JL c_. JL J » LJ JL JL JV *¦* ^^ ^^ ^^ **-*--&. r f ** ^p^ »-* *¦"• *^ ¦ **" **" • ^ —--¦—¦ — ^— -p-—¦ — — |— — — — — — — another factually, this Honorable Court should utilize the analysis found in the Wieczoreck opinion. In doing so, this Honorable Court should determine whether THACKERAY met the jurisdictional prerequisites for supplementary postjudgment proceedings-that is, an unsatisfied writ of execution, and an affidavit averring that the writ is valid and unsatisfied, along with identification of third persons to be impleaded-And unon review of the record, this Honorable Court will find THACKERY did meet the necessary requirements. Specifically, on September 14, 2005, THACKERAY filed his September 5, 2005 Amended Affidavit, stating he had an unsatisfied judgment, identifying HUTCHENS as a third party whom the Pinellas County Circuit Court should examine, and requesting that both BEI and HUTCHENS "show cause, if any he can, why the j r -/property in the name of TBEI1 or THUTCHENSl should not be subiect to l j — l satisfaction of the said execution.55 Moreover, on September 14, 2005, THACKERAY filed his Amended Motion for Proceedings Supplementary so as to Implead HUTCHENS. Further, all these filings, and all the orders and notices regarding the Proceedings Supplementary were served on Attorney Bangos, 1^ \^ sl~^~v ¦¦'' * „. ,_. ! -4 nu i^j-lcino j/cpicsci uaLion ai me lvray ju, zwuu rruecc umgs supp 1lementary. &£> " ^ ¦«i"^*-^ *ViiH i *-i" *¦*-».t*j-# *Tl-;; ¦¦¦" ^* .-r ¦¦"-. Consequently, HUTCHENS appeared at the Proceedings Supplementary 26 Document hosted at http://www.jdsupra.com/post/documentViewer.aspx?fid=aef1dca3-80c4-4a24-8791-3fbbc37f8a2bNext, this Honorable Court must determine if the Pinellas County Circuit Court met the fundamentals of due process listed in Wieczoreck.™ Consequently, this Honorable Court will find, upon examination of the record for the present \»K*r matter, HUTCHENS did attend the Proceedings Supplementary on May 30, 2006. '" L '*¦-^ A -^ x.-.-V I bj-j,. j _r l n K't-bCiW iV*^h-_i kuu&v 1'rri.^^" TfTl^r' The Proceedings Supplementary was before an impartial decision-maker-the Pinellas county circuit court. Moreover, HUTcHENS did receive fair notice 01 the charges and allegations in all of the above-cited motions, filings, orders and notices via Attoney Bangos. Finally, HUTCHENS had an opportunity defend himself at the Proceedings Supplementary. As such, THACKERAY established a prima facie case for impleading HUTCHENS without violated HUTCHENS5 due process rights. C. ihe lriai court Had Subject Matter Jurisdiction The Ajrellant. BEL also contends the Pinellas Countv Circuit Court t erroneously denied BEI's Motion to Dismiss for Lack of Subject Matter Jurisdiction because THACKERAY failed to prove if the Ohio trial court served BEI's Ohio counsel with the August 10, 2001 Order. As such, according to BEI, its Ohio counsel was unable to contest the finality of that decision. Accordingly, 'The fundamentals are notice and a hearing before an impatial decision-maker where the third paty can propound a defense. 27 Document hosted at http://www.jdsupra.com/post/documentViewer.aspx?fid=aef1dca3-80c4-4a24-8791-3fbbc37f8a2b"RThT -iirfh^r ormipc thp P-inpllac f^rvmrK/fS'rr/mt Prmrt lan.Vpd cnHiprt matter jurisdiction. Interestingly, however, BEI supports this contention with Florida law as opposed to Ohio law. * If BEI intended to appeal the August 10, 2001 Order, the proper legal forum would have been the Ohio Appellate Court system. Further, since BEI is contesting the validity of service of an Ohio Order, the Ohio Rules of Civil and Annellate Prnr.erhire pmH Ohin r.aQe law arvnlv—r»nt Flnrida law Mnrpm^r w"hpn this Honorable Court applies Ohio jurisprudence to the present issue, it will find Ohio jurisprudence does not provide an affirmative duty on an attoney to serve the opposing attoney with a post final judgment order, or any order for that matter, entered by an Ohio court. tsEI's January 12, 2001 Motion to Reconsider, Set Aside and/or Vacate Judgment and Amended Judgment was filed pursuant to Ohio Rules of Civil Procedure Rules 55(B), 59 and 60 (B). As such, the appeal of an Order filed pursuant to Defendant's Motion to Reconsider, Set Aside and/or Vacate Judgment and Amended Judgment is govened by Ohio Rule of Appellate Procedure Rule 4 (B)(2), which reads: RULE 4. Appeals as of Right-When Taken (Bs Exceptions. \ 28 Document hosted at http://www.jdsupra.com/post/documentViewer.aspx?fid=aef1dca3-80c4-4a24-8791-3fbbc37f8a2bThe following are exceptions to the appeal time peiod in division \—j of this rule: (2) Civil or juvenile post-judgment motion In a civil case or juvenile proceeding, if a party files a timely motion for judgment under Civ. P.. 50(B), anew trial under Civ. R. 59(B), vacating or modifying a judgment by an objection to a magistrate's decision under Civ. R. 53(E)(4)(c) or Rule 40(E)(4)(c) of the Ohio Rules of Juvenile Procedure, or findings of fact and conclusions of law under Civ. R. 52, the time for filing a notice of appeal begins to run as to all parties when the order disposing of the motion is entered. r^T-T^-mrixrx^jJVxiidQoCi^ iwc uaurvluHj.i ^I1H.V^V AV 1rU*rI1*r1\^r1rlJi-5n XrrX1 J\rL ^tJF—"R'JTL h1T11 w1Vr\1t1t*UrV\AU& IUA VirK\ J^XnJn.L+\^A0c Ct fUVJ*-Wo AjTnlUnimUOoLf 11 A\J ^O JH^\JA\J1 I Ohio Order, the thirty days to file the appeal began to toll the date the Order was en tered. Moreover, in the Ohio case of Wohlabaugh v. Salem Communications Corp, 2005 WL 629017 (2005), the trial court denied the appellant's Motion for Relief from Judgment and held that the appellant presented no grounds pursuant to Ohio Rule of * *_*. W*-jL t** v*r ^/14 Ohio Rule of Civil Procedure 60(B) provides: On motion and upon such terms as are just, the cout may relieve a party or his legal representative from a final judgment, order or proceeding for the following reasons: (1) mistake, inadvetence, surpise or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new tial under Rule 59(B); (3) fraud (whether heretofore denominated intinsic or extinsic), misrepresentation or other misconduct of an adverse paty; (4) the judgment has been satisfied, released or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the 29 Document hosted at http://www.jdsupra.com/post/documentViewer.aspx?fid=aef1dca3-80c4-4a24-8791-3fbbc37f8a2brmirf hplrl tViat m*n hnn vino rn-rnnncpl'c failure \c\ tpppivp flip ^nmman/TiiHcrm^nt Order was not grounds for vacating the Order. The trial court also stated the appellant failed to demonstrate that local counsel, who's duty it was to preserve the judgment for appeal, was not served in accordance with Ohio Rule of Civil Procedure Rule 58.15 Rule 58 discusses the entry judgment should have prospective application; or (5) any other reason justifying relief from the judgment. The motion shall be made within a reasonable time, and for reasons (1), (2) and (3) not more than one year after the judgment, order or proceeding was entered or taken. A motion under this subdivision (B) does not affect the finality of a judgment or suspend its operation. The procedure for obtaining any relief from a judgment shall be by motion as prescribed in these rules. On motion and upon such terms as are just, the court may relieve a paty or his legal representative from a final judgment, order or proceeding for the following reasons: (1) mistake, inadvertence, surprise or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(B); (3) fraud (whether heretofore denominated intinsic or extinsic), misrepresentation or other misconduct of an adverse party; (4) the judgment has been satisfied, released or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (5) any other reason justifying relief from the judgment. The motion shall be made within a reasonable time, and for reasons (1), (2) and (3) not more than one vear after the judgment, order or proceeding was entered or taken. A motion under this subdivision (B) does not affect the finality of a judgment or suspend its operation. The procedure for obtaining any relief from a judgment shall be by motion as prescribed in these rules. 15 Ohio Rule of Civil Procedure 58 provides: (A) Preparation; entry; effect. Subject to the provisions of Rule 54(B), upon a general verdict of a jury, upon a decision announced, or upon the determination of a peiodic payment plan, the cout shall promptly cause the judgment to be prepared and. the cout having signed it, the clerk shall thereupon enter it upon the journal. A judgment 30 Document hosted at http://www.jdsupra.com/post/documentViewer.aspx?fid=aef1dca3-80c4-4a24-8791-3fbbc37f8a2bof a final judgment and sets forth the affirmative duty of the Clerk of Court to serve the final order, not the opposing party. Further, BEI's arguments as set forth in its Brief does not contest the validity of service of the Ohio Final Judgment entered on *. January 27, 2000 or the Amended Final Judgment entered on June 13, 2000 as contemplated in Rule 58, but rather the service of the post final judgment Order entered by the Ohio Court on August 10, 2001, which is govened by Ohio Rule of AJxellate Procedu-re_ Rule 4 ^3jv2/L -According to Wohlabaugh, it is the duty of the BEI to prove BEI's Ohio counsel, Attoney Williams, did not receive the Order. Not only has BEI failed to do so, but upon information and belief, BEI's Ohio counsel, Attoney Williams, indicated he considered the Ohio matter to be complete. Specifically, Ohio local counsel for THACKERAY, Attoney Paolucci, spoke with BEI's local counsel, is effective only when entered by the clerk upon the journal. (B) Notice of filing. When the cout signs a judgment, the cout shall endorse thereon a direction to the clerk to serve upon all paties not in default for failure to arrear notice of the judgment and its date of entiy upon the jounal. Within three days of entering the judgment upon the jounal, the clerk shall serve the parties in a manner prescribed by Civ.R. 5(B) and note the service in the appearance docket. Upon serving the notice and notation of the service in the appearance docket, the service is complete. The failure of the clerk to serve notice does not affect the validity of the r t *» judgment or the running of the time for appeal except as provided in App.K. 4(A) (C) Costs. Entry of the judgment shall not be delayed for the taxing of costs. 31 Document hosted at http://www.jdsupra.com/post/documentViewer.aspx?fid=aef1dca3-80c4-4a24-8791-3fbbc37f8a2bAttoney Williams, regarding the allegations made on his behalf. Attoney Williams never claimed that he had not received the Order, and in fact stated that he believed the Ohio litigation to be "over." BEI has neither filed an affidavit of Attoney Williams, alleging that he was never served with the August 10,2001 Order, nor met its duty in any manner whatsoever, of proving BEI's local counsel never received the a--. a. /\UgUSL11U r\, o£a\)a\iJ rL\„ iWiUCI 32 Document hosted at http://www.jdsupra.com/post/documentViewer.aspx?fid=aef1dca3-80c4-4a24-8791-3fbbc37f8a2bfONfT TTSTON X 1 -^_^-«^JJ ^h/*w* For the foregoing reasons, THACKERAY requests this Honorable Court affirm the Orders denying BET s Motions to Dismiss for Lack of Subj ect Matter Jurisdiction, and the Order impleading HUTCHENS. THOMPSON, GOODIS, THOMPSON GROSECLOSE & RICHARDSON, P.A. /7t KEVIN M. DAVIS, ESQ. FBN#. 0795941 ANDREA N. ZDANIEWSKI, ESQ. Post Office Box 90 St. Petersburg, FL 33731 (727) 823-0540 (727) 823-0230 (Fax) Attorneys for Appellee, MARK THACKERAY Si J Document hosted at http://www.jdsupra.com/post/documentViewer.aspx?fid=aef1dca3-80c4-4a24-8791-3fbbc37f8a2bCERTIFICATE OF SERVICE I HEREBY CERTIFY that the foregoing has been provided via First Class U.S. Mail to Mark J. Albrechta, Esquire, 15824 Hampton Village Drive, Tampa, Florida, 33618-1654 this 16th day of July, 2007. THOMPSON, GOODIS, THOMPSON GROSECLOSE & RICHARDSON, P.A. KEVIN M. DAVIS, ESO FBN# 0795941 ANDREA N. ZDANIEWSKI, ESQ. FBN# 0647330 Post Office Box 90 St. Petersburg, FL 33731 (727) 823-0540 (727) 823-0230 (Fax) Attoneys for Appellee, MARK THACKERAY 34 Document hosted at http://www.jdsupra.com/post/documentViewer.aspx?fid=aef1dca3-80c4-4a24-8791-3fbbc37f8a2brp^TTFTrATF hf roiupi tanpf The undersigned hereby certifies that this Answer Brief complies with the requirements set forth in Florida Rule of Appellate Procedure 9.210(a)(2). irTA_/ivirowiN, uuuivio, xriwivxrowiN, GROSECLOSE & RICHARDSON, P.A KEVIN M. DAVIS, ESQ. FRN&07QSQ41 1 I I ANDREA N. ZDANIEWSKI, ESQ FBN# 0647330 Post Office Box 90 St. Petersburg, FL 33731 (727) 823-0230 (facsimile) Attorneys for Appellee, MARK THACKERAY 35 Document hosted at http://www.jdsupra.com/post/documentViewer.aspx?fid=aef1dca3-80c4-4a24-8791-3fbbc37f8a2b

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